Federal judge to decide on motions to dismiss Detroit water shutoff suit

Lawyers from the American Civil Liberties Union (ACLU) and NAACP appeared in U.S. District Court Wednesday to oppose motions to dismiss in a class-action lawsuit over Detroit’s water shutoffs. Two separate motions to dismiss were filed by defendants; one by Gov. Gretchen Whitmer and another by the City of Detroit on behalf of defendants that include Mayor Mike Duggan and Gary Brown of the Detroit Water and Sewerage Department (DWSD).     

The suit was brought in response to the city of Detroit’s water shutoff crisis that has affected a total of 141,000 homes since 2014. It looks for both a short-term assurance that the city won’t return to water shutoffs as well as a long-term affordability plan, which could be something similar to the Philadelphia plan that ties water payments to income. The ACLU and NAACP lawyers argued the current moratorium on disconnections put forward by Mayor Duggan was not legally binding and that affordability programs offered by the Wayne Metropolitan Community Action Agency and DWSD were not doing enough to help those most vulnerable to shutoffs. 

Coty Montag, a lawyer for the NAACP Legal Defense and Educational Fund argued that Detroit’s water shutoffs are a civil rights issue violating the federal Fair Housing Act â€” which makes it illegal to discriminate in the sale or rental of housing — and Michigan’s Elliot-Larsen Civil Rights Act. 

Mark Fancher, staff attorney for the ACLU of Michigan’s Racial Justice Project argued that Whitmer had given credibility to the city’s disconnection program when Robert Gordon, former director of the Department of Health and Human Services denied the connection between water shutoffs and disease in 2019.

“As long as it was only Black and poor people in Detroit who were at risk because of mass water shutoffs, somehow there isn’t the authority to get involved and to impose a moratorium or to declare a public health emergency,” Fancher said, referring to the Governor’s hesitancy to weigh in on shutoffs before the COVID-19 pandemic. He argued that it wasn’t until the disease began to spread and threaten whiter and more affluent areas that, “all of a sudden, the governor has authority.”

Fancher also said that the potential of water shutoffs to expose people to illness was a violation of bodily integrity. In a press conference hosted by the ACLU after the hearing, he clarified that this is “a constitutional right so fundamental the government must have compelling reasons for doing it. Collection of water debts is not a compelling reason.”

During the press conference, Montag asserted that the shutoffs were a violation of the Fair Housing Act and the Elliott-Larsen Act, “because of the essential link between running water and the habitability of one’s home.” According to the ACLU’s legal filing, 95% of the water shutoffs in Detroit between January 2017 and July 2018 occurred in Census tracts that were majority African American.

In the hearing, Jason Bailey, special economic justice council at the NAACP Legal Defense Fund  stressed that the city’s moratorium is non-binding, putting Detroiters at risk of future shutoffs. He mentioned Duggan’s previous reversal on drainage fees — some of which were suspended ahead of the 2017 election only to be reinstated later — as a reason to expect a return to disconnections.

Bailey also said that shutoffs were a violation of the 14^th Amendment’s Equal Protection Clause because they failed to account for a customer’s ability to pay. “The Equal Protection Clause generally prohibits state actions that punish individuals for non-payment of certain costs, without first taking those factors into consideration,” he said during the press conference.    

Bailey described programs like DWSD’s 10/30/50 Payment Plan and Wayne Metro’s Water Residential Assistance Program (WRAP) as “woefully inadequate” for addressing water insecurity. “These programs only provide short term assistance to families facing financial insecurity,” he said. “As a result, many low-income families often go without water service altogether or become trapped in a cycle of repeated disconnections and reconnections.”

Lawyers from all parties now await a written order on the motions for dismissal from Chief Judge Denise Page Hood. Meanwhile, rate-payers in Detroit and across Michigan continue to accumulate past-due balances even under the city moratorium–which lasts until 2022–and a statewide order that is in place until the end of March. Without stronger protections in place, there is currently no guarantee that these bills won’t lead to further shutoffs.

Lawyers for the state and city pressed for a dismissal, arguing that civil rights laws couldn’t be applied to their clients. Michigan Assistant Attorney General Mark Sands said that although Gov. Whitmer was sympathetic to the case, the lawsuit was a violation of the 11^th Amendment, which protects states from certain legal challenges. Hallam Stanton, legal counsel for the City of Detroit,  argued that water shutoffs aren’t covered by the Fair Housing Act and that lawyers from the ACLU and NAACP couldn’t show a disparate racial impact from shutoffs. Stanton said the shutoffs were a function of wealth, not race. “Wealth is not actionable,” he said.

Lawyers from all parties now await a written order on the motions for dismissal from Chief Judge Denise Page Hood. Meanwhile, rate-payers in Detroit and across Michigan continue to accumulate past-due balances even under the city moratorium–which lasts until 2022–and a statewide order that is in place until the end of March. Without stronger protections in place, there is currently no guarantee that these bills won’t lead to further shutoffs.